Diplomatic Immunity . . . For a Dog?

by Duncan Hollis

Article 37(1) of the 1961 Vienna Convention on Diplomatic Relations (VCDR) provides that a diplomat’s immunity extends to cover “[t]he members of the family of a diplomatic agent forming part of his household … if they are not nationals of the receiving State.”  As the Ottawa Citizen reports, the question is whether Canadian courts applying the VCDR should take the term “family dog” literally:

A lawyer representing the German Embassy is raising the diplomatic immunity flag over a carpenter’s plan to sue the ambassador and his wife after their dog bit him at their official residence last November…. [E]mbassy lawyer Kurt Anders says any such lawsuit would fail in court because Mark Liboiron and his lawyer, Howard Yegendorf, do not have a case against [Ambassador] Werner and Eleonore Wnendt….

Anders states Liboiron was “the author of his own misfortune” when he was bitten by Milou, a golden retriever, on Nov. 29. “The act of keeping a dog unleashed or uncaged was not the cause of your client’s alleged damages. Rather, it is your client’s provocation of the dog that led to any alleged harm. In fact, but for your client’s particular act of calling and taunting the dog, there would not have been any harm.” . . . .

Anders also takes exception to the pending legal proceedings against the Wnendts. “I am positive that a Barrister and Solicitor with your experience is aware of the Foreign Missions and International Organizations Act. … This statute provides for absolute immunity from criminal and civil liability in this situation. Since you must be fully aware of this fact, we wonder why the threat of legal proceedings is contained in your letter.” …

In a Public Citizen story last January, Liboiron said he had a calming influence on Milou, who often growled and snarled at his co-workers, and even at residence staff. Liboiron says the ambassador’s wife was impressed by the way Milou responded to him. But on Nov. 29, he says, after extending his right hand to Milou as the dog approached him, tail wagging, things went terribly wrong. The dog sniffed his hand and then suddenly chomped on it and wouldn’t let go. The carpenter says he furiously swung his arm back and forth several times, eventually smashing Milou into a wall before the dog released his hand. Beside the bite, Liboiron says he suffered damage to his arm, shoulder and neck from swinging the dog. He was on painkillers and underwent therapy for several weeks. He figures he lost about $8,000 in wages….

That the embassy would go [the diplomatic immunity] route, even before there was any threat of a lawsuit from Liboiron, was emphatically denied in January by former German press attaché Peter Finger. When Dolyn Developments, Liboiron’s employer at the time, could not get the German mission to reimburse it for about $5,000 in wages it paid the carpenter while he was recovering at home, it accused the embassy of abusing diplomatic immunity. Finger told The Public Citizen that the refusal to compensate Dolyn had nothing to do with diplomatic immunity. He said it was the embassy’s belief that Dolyn should recover the money it paid Liboiron from the WSIB [Ontario’s Workers Safety and Insurance Board]. Dolyn stopped paying Liboiron about two weeks into his recovery after he decided he was going to sue….

[Liboiron's lawyer] Yegendorf says that if the Germans present a motion that the lawsuit be dismissed due to diplomatic immunity, he will get a chance to cross-examine in trying to convince the court the lawsuit should proceed based on what Finger told the newspaper in January. “Finger clearly, in speaking, was speaking as a representative of the German government … and I think his statements bind the German government.” Yegendorf says Finger’s remarks played a part in his client’s decision to sue for lost wages as well as pain and suffering….

Meanwhile, Liboiron says he ate into his savings after he missed another three weeks or so of work to recover, without pay. “Pile of BS. I wish it had never happened. It’s not like I asked the dog to bite me.”

OK.  So, it’s not actually a case of diplomatic immunity for a dog; the immunity to be invoked will be that of the Ambassador and his wife.  Still, there’s some interesting questions here.  Does the German press attaché’s statements constitute a waiver of immunity?  I’m guessing it’s not express enough to do so.  In addition, in the United States, a plaintiff might have tried for the non-commercial tort exception under § 1605(a)(5) of the 1978 Foreign Sovereign Immunities Act (which, of course, requires a suit against the sovereign — Germany). I wonder if there’s a Canadian equivalent provision that could play in here?  I’d welcome comments from those with more knowledge of Canada’s approach to diplomatic immunity.  Any dog lovers out there should feel free to weigh in as well.

http://opiniojuris.org/2013/06/27/diplomatic-immunity-for-a-dog/

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